Order-16.
Date-22/12/2017.
Shri Anupam Bhattacharyya, President.
The instant complaint has been filed by the complainant u/s.12 of the C.P. Act, 1986 praying for reimbursement of Rs.1,48,166/- and compensation for Rs.2 lakhs (1 lakh for deficiency in service and another Rs.1 lakh for harassment and mental agony).
The complainant’s case, in brief, is that the complainant has a mediclaim policy on 29-11-2010 under OP1 through OP2 being policy No.153600/48/10/8500004858 for the period from 29-11-2010 to 28-11-2011. After one year the said policy was renewed and was followed for the period from 29-11-2011 to 28-11-2012 being policy No.153600/48/11/8500005745 in the name of the complainant, his mother and wife. During 2012 his mother was taken to Prof. Dr. Dipesh Kr. Mondal on 23-08-2012 who advised for an MRI of brain and issuing the report advised to consult Neurosurgeon Prof. Dr. S.P. Ghorai. On 06-09-2012 Prof. Dr. Ghorai after checking up his mother recorded that she was suffering from Vertigo since past 5-6 years, unsteadiness of GEIT for 1-2 years, palpitation, LOC 3 to 4 times etc. and advised for undergoing a surgery. Prof. Dr. Ghorai being not available, ultimately his mother was admitted under the supervision of Dr. G.R. Vijay Kumar in the Fortis Hospital, Kolkata and there Dr. Vijay Kumar held brain surgery of complainant’s mother and she was discharged on 13-10-2012 who in his prescription recorded that patient was suffering from the problem of unsteadiness, balance and memory for the past one month. The mother of the complainant was admitted in Fortis Hospital with the history of progressive unsteadiness at GEIT and memory disturbances for one month and she had diabetes mellitus, hypertension as per her past medical history. The complainant had to pay Rs.1,48,166/- to the Fortis Hospital for the treatment and he applied with the said claim before the OP3. On 18-10-2012 reimbursement of the said medical expenses incurred by the complainant in respect of his policy under OP1, OP3 by reply letter dated 28-11-2012 informed OP2 that as per prescription of Prof. Dr. S.P. Ghorai dated 06-09-2012 patient history of Vertigo was for 5-6 years, unsteadiness of GEIT for 1-2 years and the policy was effective since 29-11-2010 and with this observation the claim of the complainant was repudiated as per Exclusion Clause 4.1 and 4.3. Dr. Vijay Kumar issued certificate on 07-02-2013 that the patient had symptom for one month prior to surgery on 11-03-2013. The complainant filed review application to the OP2 to reconsider his claim in the light of observation of Dr. Vijay Kumar who held operation and not upon the opinion of Prof. Dr. S. P. Ghorai. OP2 by letter dated 07-08-2013 informed that they were of the same opinion with OP3 and treated the claim of the complainant as no claim as per policy condition 4.1 for pre-existing disease. Thereafter, the complainant made a complaint before the Insurance Ombudsman of OP1 but no result in his favour and thereafter, they moved to the CA&FBP on 27-06-2016. The mediator officer being not medical expert requested both the parties to review the matter which was refused in limine and having no result the complainant filed the instant complaint before this Forum. Hence, the instant case
The written version filed by the OPs 1 and 2, in brief, is that OP2 shall not be liable for making any payment in respect of expenses incurred by the complainant in connection with all diseases which are pre-existing as per policy condition No.4.1 and the same is on the basis of the prescription of Prof. Dr. S.P. Ghorai and Dr. D.K. Mondal dated 06-09-2012 and 23-08-2012 as to suffering from Vertigo for 5-6 years unsteadiness for GEIT for 1-2 years. They have rightly rejected the claim of the complainant as per Exclusion Clause 4.1 and 4.3 of the policy. After discharge complainant moved before the Ld. Insurance Ombudsman who held that the decision of the insurance company as to repudiation of the claim is correct. Again the complainant moved before the Consumer Affairs Deptt. The certificate of Dr. Vijay Kumar dated 04-12-2013 was submitted by the complainant much after repudiation requesting for review. The OP insurance company reviewed the same but decision has not been changed. The OP insurance company has rightly rejected the claim as per Exclusion Clause 4.1 and 4.3 of the policy and also the complainant has not mentioned post history of disease in the proposal form and for that the complainant has suppressed the material information on 29-11-2010. It is a clear violation of terms and condition of the policy. The complainant is not entitled to get any relief and prayed for dismissal of the complaint. Hence, the instant written version.
The case has been taken up for ex parte as against the OPs3 and 4.
Considering the pleading of both sides the following points have been raised.
Points for Decision
- Whether the case is maintainable in its present form and law?
- Whether there is any cause of action to file the case?
- Whether the case is barred by limitation?
- Whether the complainant is entitled to get the relief as prayed for?
- What other relief/reliefs the complainant is entitled to get?
Decision with Reasons
Points No.1 to 5 .
All the points are taken up together for the sake of convenience.
The instant complaint is for refund of Rs.1,48,166/- towards the medical expenses on the basis of mediclaim policy and compensation of Rs.2 lakhs.
The complainant’s main case is that the OP Insurance Company has illegally repudiated the claim of mediclaim policy on the ground that they have suppressed the pre-existing disease of the mother of the complainant on the basis of the prescription of Prof. Dr. S.P Ghorai and Dr D.K. Mondal dated 06-09-2012 and 23-08-2012, where Dr. Vijay Kumar who held operation of brain tumor of his mother has certified that she was admitted with the sufferings for last one month.
On the other hand, OP insurance company is relying upon the certificate of Dr S.P. Ghorai and Dr. D.K. Mondal and their main case is that the complainant filed the certificate of Dr. Vijay Kumar as to the sufferings for the last one month only was filed after repudiation of the claim. They have rightly repudiated the claim as per Exclusion Clause 4.1 and 4.3 of the policy.
To prove the case both the complainant and OPs have filed their evidence on Affidavit and questionnaire respectively against each other and they have filed reply to the respective questionnaires accordingly. Both parties have also filed the relevant documents in support of their respective case.
We have gone through the questionnaires and reply of the respective parties very carefully.
This is a case for recovery of medical expenses on the basis of mediclaim policy for the treatment of the matter of the complainant.
The claim of the complainant was repudiated by the OP insurance company on the basis of the Exclusion Clause 4.1 and 4.3 fOR the policy of the suppression of pre-existing disease. This is the main dispute of this particular case.
The OPs 1 and 2 insurance company has adduced Evidence on Affidavit and in spite of this Evidence, questionnaires were there and reply was also given by OP1.
Regarding pre-existing disease in respect of the case of OP Insurance Company they have relied upon the prescriptions given by Dr. S.P. Ghorai and Dr. D.K. Mondal dated 06-09-2012 and 23-08-2012 respectively and the respective prescription has been filed by the OP Insurance company in respect of the treatment of mother of the complainant who is covered under the instant mediclaim policy for the insured sum of Rs.2 lakh.
On the other hand, the complainant has relied upon the certificate of Dr. G.R. Vijay Kumar who held operation of the mother of the complainant and the instant claim has been filed by the complainant. This particular doctor who held operation of the mother of the has given certificate that the patient was suffering from previous disease for one month.
In respect of this particular certificate of Dr. G.R. Vijay Kumar the Ld. Lawyer for the OP Insurance company has advanced argument that this document being filed by the complainant after repudiation of the claim, their case is that this particular document is manufactured one.
Simply on the basis of pleading that this cannot be decided that this document is manufactured one where the particular doctor who has put his signature on the body of the document with his seal and also it is clear that this particular doctor held operation of the mother of the complainant and this has not been challenged or rebutted in any way by the insurance company. It is true that the mother of the complainant was examined by Dr. S.P. Ghorai and Dr. D.K. Mondal on 06-09-2012 and 23-08-2012 respectively and prescriptions to that effect has been filed where it is mentioned that Vertigo problem was for 5-6 years in the prescription of Dr. S.P. Ghorai dated 06-09-2012.
Be that as it may it is also clear that the mother of the complainant was not operated by those doctors i.e. Dr. S.P. Ghorai and Dr. D.K. Mondal.
For absence of any cogent evidence rebutting the evidence as to document signed by the Dr. G.R. Vijay Kumar who held the operation of the mother of the complainant we have no other alternative but to rely upon this document and relying upon the same we hold that the complainant is entitled to get the claim for the medical expenses incurred as per mediclaim policy and repudiation of the claim by the OP as per Exclusion Clause No.4.1 and 4.3 is not correct. According to coverage of the insurance policy the complainant is entitled to get the claim for the medical expenses incurred for the medical treatment of the mother of the complainant.
Considering the above discussions as a whole we find that all the points are disposed of in favour of the complainant in part and as such, the complainant is entitled to get the claim towards medical expenses according to the coverage as per policy condition mentioned in Clause 1 A,B,C along with litigation cost of Rs.5,000/-.
Hence,
Ordered
That the instant case no.167 of 2017 be and the same is allowed in part on contest against the OPs1 and 2 and dismissed against OP3 and 4.
OPs 1 and 2 are jointly and severally liable to pay the awarded amount.
OPs 1 and 2 - Insurance Company is directed to settle the claim of the complainant already filed in respect of Rs.1,43,000/- according to coverage as per mediclaim policy condition mentioned in Clause No.1A,B and C of Mediclaim Policy along with interest @7 percent p.a. from the date of filing this complaint till realization and litigation cost of Rs.5,000/- within 45 days from the date of this order, in default, the OPs 1 and 2 is to pay @Rs.100/- per day as punitive damages and the amount so accumulated should be deposited to this Forum
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision of the C.P. Act.
